On December 1, 2016, employers will have to pay more to take advantage of the Fair Labor Standards Act’s (FLSA) so-called white collar overtime exemptions. To prepare for the upcoming change, employers need to know whether and to what extent they will be affected by the new overtime exemption regulations.

The new rules focus primarily on the minimum salary and compensation levels needed to qualify for the FLSA’s executive, administrative, professional and computer employee overtime exemptions. Employers can ask the following questions to determine the potential impact of the new overtime rules before it’s too late.

Are there any employees classified as exempt under one of the FLSA’s white collar overtime exemptions? If no, you should not be affected by the higher standard salary levels under the new rules. If yes, move on to the next question.
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Those failing this lesson may get another from the DOL, but it probably won’t be free. Since the DOL is making an effort to identify and remedy employee misclassification, employers should be doing the same.

In March 2014, President Obama directed the Secretary of Labor to “modernize and streamline” the Fair Labor Standards Act’s overtime exemption regulations governing executive, administrative and professional employees. On July 6, 2015, the Department of Labor (DOL) published its proposed regulatory changes to these so-called ‘white collar’ overtime exemptions, and despite their significance, they are quite simple.

The DOL essentially proposed three general changes to the white collar overtime exemptions.

The current federal minimum wage under the Fair Labor Standards Act (FLSA) is $7.25 per hour ($2.13 for tipped employees). Some states, however, have established their own minimum wage, and employees in these states are entitled to whichever minimum wage is higher. Given the existence of multiple minimum wage rates, employers, particularly those operating in more than one state, must know which minimum wage rate (or rates) may apply to their operations.

According to the National Conference of State Legislatures:

38 states introduced minimum wage bills and 34 states considered minimum wage increases during the 2014 legislative session.

23 states and D.C. have minimum wages above the federal minimum wage as of August 1, 2014.

18 states have minimum wages that are the same as the federal minimum wage.

3 states have minimum wages below the federal minimum wage, so the federal minimum wage applies.

Though dealing with a disgruntled employee can be hard, various anti-retaliation protections make it even harder when an employee’s complaints or conduct is protected by law. A 2013 Congressional Report identified 40 different federal whistleblower and anti-retaliation laws, including:

Chances are there is a bully in your workplace, and that’s bad for business. The Workplace Bullying Institute (WBI) defines bullying as repeated mistreatment involving physically or verbally abusive conduct that is threatening, intimidating or humiliating, or that interferes with or prevents work from getting done. According to the WBI’s 2014 Workplace Bullying Survey:

wearing religious clothing or articles, such as a Muslim hijab (headscarf), a Sikh turban or a Christian cross

observing a religious prohibition against wearing certain garments, such as a Muslim, Pentecostal Christian, or Orthodox Jewish woman's practice of not wearing pants or short skirts

adhering to shaving or hair length observances, such as a uncut hair and beard (Sikh), dreadlocks (Rastafarian) or peyes/side locks (Jewish)

Title VII, which protects all aspects of religious observance, practice and belief, defines religion very broadly. It protects not only traditional, organized religions, but also religious beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or may seem illogical or unreasonable to others.

On September 17, 2013, the Department of Labor (DOL) announced a final rule that will extend the Fair Labor Standards Act’s minimum wage and overtime protections to most of the nation’s workers who provide home care assistance to elderly people and people with illnesses, injuries and disabilities. The DOL estimates that when it becomes effective on January 1, 2015, this new rule will extend the FLSA’s protections to nearly two million direct care workers.

According to the DOL, direct care workers remain among the lowest paid in the service industry because they have been denied minimum wage and overtime compensation under the FLSA’s companionship services exemption. The DOL suggests that courts have applied this exemption too broadly to encompass essentially all workers providing companionship services for those requiring care because of age or infirmity.

Did you know that individuals can be held personally liable for violations of the Fair Labor Standards Act (FLSA)? The FLSA’s broad definition of employer includes “any person acting directly or indirectly in the interests of an employer in relation to an employee.” The Eleventh Circuit Court of Appeals recently considered when it is appropriate to hold someone personally liable for wage and hour violations under the FLSA.

In Lamonica v. Safe Hurricane Shutters, Inc., former employees sued their employer to recover unpaid overtime wages under the FLSA. The employees also sued two of the corporate-employer’s directors, arguing that they sufficiently controlled the corporation to justify holding them personally liable under the FLSA. To support their case against the directors, the employees showed that: More...

The Fair Labor Standards Act (FLSA) establishes federal standards for minimum wage and overtime compensation. Under the FLSA, interns in the for-profit private sector will generally be viewed as employees entitled to compensation except in very limited circumstances.

Whether an individual working in an internship or training program is considered an employee that should be paid minimum wage and overtime compensation under the FLSA depends on the facts and circumstances. When making this determination, the following criteria must be applied to each particular situation:

The internship, even though it includes performing actual work, is similar to training which would be given in an educational environment;

The internship experience is for the benefit of the intern;

The intern works under close supervision of existing staff and does not displace regular employees;

The employer derives no immediate advantage from the activities of the intern, and its operations may occasionally be impeded by the intern;

The intern is not necessarily entitled to a job at the conclusion of the internship; and

The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

The 11th Circuit Court of Appeals recently became the first federal appellate court to consider a significant, though rarely publicized, provision of the Affordable Care Act—the reasonable break time requirement for nursing mothers under the Fair Labor Standards Act (FLSA).

In Miller v. Roche Surety and Casualty, an employee sued her employer alleging a violation of her rights as a nursing mother under the FLSA. Under the FLSA, employers are required to provide reasonable break time for an employee to express breast milk for her nursing child. This requirement, which extends for 1 year after the child's birth, requires an employer to provide “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public,” so that the employee may express breast milk.

The Fair Labor Standards Act limits an employer’s ability to make salary deductions from employees who are exempt from the FLSA’s overtime compensation provisions. Exempt employees must generally receive their full salary for any week in which they perform any work, regardless of the number of days or hours worked. And, the FLSA generally does not allow employers to deduct from an exempt employee’s salary because of variations in the quality or quantity of work performed.

However, there are limited exceptions to the FLSA’s general rule against salary deductions for exempt employees. For example, salary deductions are allowed:

An employer’s liability for sexual harassment under Title VII of the Civil Rights Act depends on whether the harasser is a supervisor. If the alleged harasser is the victim’s co-employee, the employer may have various defenses to liability. However, if the harasser is a supervisor, Title VII’s strict liability standard may be triggered and the employer may be left defenseless.

Under the Fair Labor Standards Act (FLSA), employers are required to pay employees the appropriate minimum wage and overtime rate for every compensable hour worked. Determining the number of hours worked by an employee is ordinarily a routine matter. However, when travel time is involved, employers must understand that the FLSA treats different types of travel, well, differently. More...

In the past, we have written about why employers should generally fear violations of the Fair Labor Standards Act (FLSA) more than violations of other employment-related laws, such as Title VII of the Civil Rights Act or the Family and Medical Leave Act. The FLSA’s broad applicability, plaintiff-friendly provisions, and technical nature, have made it very popular with plaintiffs’ attorneys. However, a recent ruling by the United States Court of Appeals for the Eleventh Circuit appears to offer employers a way to minimize the damages caused by being sued under the FLSA. More...

Like many employment-related laws, the Fair Labor Standards Act (FLSA), which is the federal law governing minimum wages, maximum hours, and overtime pay, includes an anti-retaliation provision. In Katsen v. Saint-Gobain Performance Plastics Corp., Case No. No. 09-834, the United States Supreme Court was called upon to decide whether the FLSA’s anti-retaliation provision protects only those employees submitting written complaints of FLSA violations in their workplace.More...

Many employers utilize the services of interns without giving much consideration to whether these volunteer workers should be compensated. In fact, employers often operate under the assumption that interns never need to be compensated. More...

Our outside sales employees travel to prospects' places of business for the purpose of making sales. They are paid strictly on a commission basis and do not receive a fixed salary. Are these employees exempt from the Fair Labor Standards Act's overtime pay requirements?More...

The Human Equation's newsletters and publications are intended as an information source for the clients and friends of the firm. Their content should not be construed as legal advice, and readers should not act upon the information in these publications without professional guidance. Please note that newsletters and publications that are archived by The Human Equation are not updated after initial publication and may not contain the most current information available.